new
law expanding the
government's spying powers
gives the Bush
Administration a six-month
window to install
possibly permanent back
doors in the nation's
communication networks. The
legislation was passed
hurriedly by Congress over
the weekend and
signed into law Sunday
by President Bush.

The
Administration pushed for
passage of the changes to
close what it called a "surveillance
gap," referring to a
long-standing feature of the
nation's surveillance laws
that required the government
to get court approval to
capture communications
inside the United States.

Map of South Asia

Photo:
Room 641A at AT&T's internet switching facility in San
Francisco. Former AT&T technician Mark Klein
says the room is a secret
internet spying outpost for the government.

While the
nation's spy laws have been
continually loosened since
9/11, the Administration
never pushed for the right
to tap the nation's domestic
communication networks until
a secret court recently
struck down a key pillar
of the government's secret
spying program.

The
Administration argues that
the world's communication
networks now route many
foreign to foreign calls and
emails through switches in
the United States.

Prior to
the law's passage, the
nation's spy agencies, such
as the National Security
Agency and the Defense
Intelligence Agency, didn't
need any court approval to
spy on foreigners so long as
the wiretaps were outside
the United States.

Now,
those agencies are free to
order services like Skype,
cell phone companies and
arguably even search engines
to comply with secret spy
orders to create back doors
in domestic communication
networks for the nation's
spooks. While it's unclear
whether the wiretapping can
be used for domestic
purposes, the law only
requires that the programs
that give rise to such
orders have a "significant
purpose" of foreign
intelligence gathering.

The
law:

Defines the act of
reading and listening
into American's phone
calls and internet
communications when they
are "reasonably
believed" to be outside
the country as not
surveillance.

Gives
the government 6 months
of extended powers to
issue orders to
"communication service
providers," to help with
spying that "concerns
persons reasonably
believed to be outside
the United States." The
language doesn't require
the surveillance to only
target people outside
the United States, only
that some of it does.

Forces Communication
Service providers to
comply secretly, though
they can challenge the
orders to the secret
Foreign Intelligence
Court. Individuals or
companies given such
orders will be paid for
their cooperation and
can not be sued for
complying.

Makes
any program or orders
launched in the next six
months perpetually
renewable after the six
month "sunset" of the
new powers last
for a year after being
authorized

Grandfathers in the the
current secret
surveillance program --
sometimes referred to as
the Terrorist
Surveillance Program --
and any others that have
been blessed by the
Foreign Intelligence
Surveillance Court.

Requires the Attorney
General to submit to the
secret surveillance
court its reasons why
these programs aren't
considered domestic
spying programs, but the
court can only throw out
those reasons if it
finds that they are
"clearly erroneous."

Requires the Attorney
General to tell Congress
twice a year about any
incidents of
surveillance abuse and
give statistics about
how many surveillance
programs were started
and how many directives
were issued.

Makes
no mention of the
Inspector General, who
uncovered abuses of the
Patriot Act by the FBI
after being ordered by
Congress to audit the
use of powerful
self-issued subpoenas,
is not mentioned in the
bill.

In short,
the law gives the
Administration the power to
order the nation's
communication service
providers -- which range
from Gmail, AOL IM, Twitter,
Skype, traditional phone
companies, ISPs, internet
backbone providers, Federal
Express, and social networks
-- to create possibly
permanent
spying outpostsfor the federal
government.

These
outposts need only to have a
"significant" purpose of
spying on foreigners, would
be nearly immune to
challenge by lawsuit, and
have no court supervision
over their extent or
implementation.

Abuses of
the outposts will be
monitored only by the
Justice Department, which
has already been found to
have underreported abuses of
other surveillance powers to
Congress.

In
related international news,
Zimbabwe's repressive
dictator Robert Mugabe also
won passage of a law
allowing the government to
turn that nation's
communication infrastructure
into a gigantic, secret
microphone.

UPDATE:
This analysis originally
said that the orders entered
under the new rules could be
renewed indefinitely. That
is not accurate. I
conflated the ability of the
government to continue
indefinitely the programs
under way under FISA before
the law was signed, with the
section that says that the
programs under the new law
go for a full year, despite
the 6 month sunset.

That
said, if a future bill
includes the same
grandfather clause that this
bill has, the spying
outposts could easily
permanent.

Those
interested in seeing how I
made this mistake, look at
Section 6 of the
bill. I regret the
error.

UPDATE
2: James Risen, the New
York Times reporter who
broke the story of the
warrantless wiretapping
program, has an analysis
piece
here.

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